Summary
using the original sentencing date to determine if defendant served requisite number of years
Summary of this case from Peterson v. StateOpinion
Case No. 5D19-500
07-25-2019
Scott B. WEIAND, Appellant, v. STATE of Florida, Appellee.
Scott B. Weiand, South Bay, pro se. Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
Scott B. Weiand, South Bay, pro se.
Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
WALLIS, J.
Appellant, Scott B. Weiand, pro se, appeals the summary denial of his motion for review of his sentence filed pursuant to Florida Rule of Criminal Procedure 3.802. Appellant argues that the postconviction judge erred in denying his motion. We agree, reverse the summary denial, and remand with instructions.
In July 1988, Appellant pled guilty to dealing in stolen property, first-degree murder, two counts of grand theft, burglary of a conveyance, armed kidnapping, and robbery with a firearm and was sentenced to two life sentences to run consecutively.
In 2016, Appellant successfully obtained postconviction relief, which found that he was entitled to be resentenced pursuant to Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). State v. Weiand, 41 Fla. L. Weekly S579, 2016 WL 6354186 (Fla. Oct. 28, 2016). On June 23, 2017, at resentencing, the sentencing court considered factors relevant to the offense and to Appellant's youth and attendant circumstances, as required by section 921.1401, Florida Statutes (2017). The court then resentenced Appellant to two consecutive life sentences and awarded credit for time served after concluding that Appellant was "irredeemably incorrigible."
On January 10, 2019, Appellant moved for his sentence review pursuant to section 921.1402, Florida Statutes (2017), arguing that he was entitled to sentencing review because he had served more than twenty-five years and he had not been previously convicted of the enumerated offenses in section 921.1402(2)(a), that would preclude him from receiving review. Subsequently, the postconviction court dismissed the motion without prejudice, explaining that Appellant had misapplied the statute. The postconviction court denied the motion as premature, "[b]ecause [Appellant] was sentenced on July 13, 2017, his review period would begin from that point forward." The postconviction court also stated that it had conducted a review at the same time that it resentenced Appellant.
Section 921.1402(2)(a) states, "A juvenile offender sentenced under [section] 775.082(1)(b)1. is entitled to a review of his or her sentence after 25 years." At the review hearing, the court shall "determine whether the juvenile offender's sentence should be modified," and shall consider the nine factors enumerated in the statute and any other factor it finds relevant. § 921.1402(6), Fla. Stat.
Based on the postconviction court's order, the court denied Appellant's requested review because it was premature and because the court had previously conducted a review prior to resentencing Appellant in 2017. First, Appellant's request was not premature. Section 921.1402(2)(a) clearly states that a juvenile offender is entitled to a review of his or her sentence after twenty-five years. Because Appellant was sentenced in 1988 and his subsequent resentencing in 2017 considered his time previously served, Appellant has served the requisite twenty-five years, entitling him to review under section 921.1402(2)(a). To the extent that the postconviction court denied Appellant's claim as premature, the court erred.
However, the language of section 921.1402(2)(a) indicates that a juvenile is limited to one review. If at resentencing the court simultaneously conducted a review in accordance with section 921.1402(6), then Appellant is not entitled to a second review. Because the record on appeal does not contain an order reflecting compliance with section 921.1402(6), which would conclusively refute Appellant's claim of entitlement, the order summarily denying Appellant's request was error.
Accordingly, we reverse and remand. On remand, if the postconviction court conducted a proper review hearing pursuant to section 921.1402(2), the court shall attach records of that review. Otherwise, we instruct the court to conduct a review pursuant to sections 921.1402(2) and (6).
REVERSED and REMANDED with Instructions.
BERGER and SASSO, JJ., concur.